Your social-media posts could get you in hot water

Commentary: A simple ‘like’ can be big trouble

WASHINGTON (MarketWatch) — Workers of America, be careful what you “like” and post on Facebook.

A federal court in Virginia recently found that a sheriff’s office employee “liking” a Facebook page wasn’t entitled to free-speech protection. Several former employees claimed they were let go after the sheriff found out about their support for a political rival through a Facebook “like,” among other actions.

A simple click of Facebook’s “like” button can also set in motion a surprising—and potentially negative—chain of events, as seen in the case of Peter TerVeer, a former Library of Congress employee.

How ‘liking' can get you fired

(18:08)

Kelsey Hubbard talks with Ruth Mantell on the ways that workers and employers are navigating the boundaries of free speech in social media.

According to his lawyer, TerVeer endured harassment, discrimination and a hostile work environment after his former superior found out that TerVeer “liked” a group that supports gays and lesbians.

These recent cases highlight an emerging reality about potential repercussions at work after engaging in social media: With Facebook users generating billions of “likes” and comments every day, there’s plenty of potential for workplace problems.

While some employers monitor social-media use, in many cases Facebook “friends” and co-workers alert management about posts they create.

Philip Gordon, an employment lawyer in Denver, tells of an employee who photographed another whose underwear was showing, and then posted the picture on Facebook.

“One of the other employees was offended and reported it to human resources,” Gordon said.

Some states protect employees from adverse actions in response to various forms of lawful, off-duty conduct. In the workplace context, the First Amendment generally applies only to public-sector workers.

The National Labor Relations Act offers protection in the private sector for employees who discuss employment issues and working conditions with co-workers.

A growing number of companies are looking into creating social-media policies, said Gerald Maatman Jr., an employment lawyer in Chicago and New York. For employers, content and productivity are the main issues, he said.

“There are lots of employers that are thinking about amending employee handbooks and termination protocols because now more and more employees are on Facebook at lunchtime,” Maatman said. “It’s water cooler conservation like never before.”

Individual cases can be complicated, and workers aren’t always protected. In one case, a respiratory therapist was fired from a children’s hospital after posting on Facebook about a co-worker who was “driving her nuts” by sucking his teeth, according to a review by the National Labor Relations Board, a federal agency focused on workplace rights.

She also wrote about her plans to “beat him with a ventilator.” The NLRB found that the therapist’s posts weren’t protected because she was “merely complaining” and not suggesting that her employer take any action.

By contrast, an administrative assistant was fired after complaining on Facebook about being reprimanded for her involvement in co-workers’ work-related problems. The NLRB found that her online message in the matter was protected.

Because of the time and expense involved, many employers prefer not to police social-networking sites, and investigate only when problems emerge, experts say. Employers may want to avoid coming off as too intrusive.

“There’s a common-sense zone of privacy,” Maatman said. “When you are trying to compete for the best candidates, do you want to be known as the big-brother organization that looks over everyone’s shoulder?”

Still, it’s safe to say the boss isn’t going to be happy with a worker who uses Facebook to post invective-strewn rants, or to reveal confidential, sensitive or embarrassing information.

Lawrence Lorber, a Washington lawyer who represents employers, said a client recently dealt with an employee who posted on Facebook about an affair between a colleague and a supervisor. The company gave the posting employee a warning and created a social-media policy.

Companies, Lorber said, “are concerned about maintaining decorum in the workplace or preventing people from using social media in a way that is derogatory. Social media is speech with a pretty big megaphone.”

Eric Jackson, an employment lawyer in McLean, Va., said one of his clients in the health-care industry is trying to train employees to be particularly careful about avoiding posts that mention client information.

“Social media is now so endemic and so casual that people forget there are underlying privacy issues that are part of their jobs,” Jackson said.

On a practical level, before posting on Facebook employees should consider their risk tolerance for workplace friction, Gordon said.

“Putting aside whether you can be disciplined or fired for what you are posting, how is it going to reflect on you as a person?” Gordon said. “Maybe something won’t rise to the level of being fired, but are you going to make your co-workers uncomfortable or make your manager question your judgment or your credibility?”

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